Recent Texas Cases of Interest to Cities

Note:  Included cases are from March 11, 2014 through April 10, 2014.

Governmental Immunity:  City of Houston v. Downstream Envtl., L.L.C., No. 01-12-01091-CV, 2014 WL 1327936 (Tex. App.—Houston [1st Dist.] Apr. 3, 2014).  Downstream was a customer of the city’s sanitary sewer system.  Some of Downstream’s waste was inappropriate for discharge into the city’s system. The waste in question caused damage to the city’s sanitary sewer system.  In response to the discharge of improper waste, the city terminated Downstream’s use of the city’s sewer system and then raised the cost for Downstream to use the system when its service was renewed.   After these actions by the city, Downstream sued for due process and equal protection violations, as well as for breach of contract and negligence.  Downstream asked for money damages and injunctive relief.  Downstream argued that it was entitled to the money damages because the city’s sanitary sewer service and issuance of an industrial waste permit to Downstream, a commercial entity that used the sewer to dispose of the waste of others, was a proprietary instead of a governmental function.  The city argued that operation of a sanitary sewer is a governmental function, and that there was no contract under Chapter 271 of the Local Government Code.  The court of appeals agreed with the city that the sanitary sewer function is a governmental function and that the waiver of immunity associated with proprietary functions would not be applied to a contract that was for a governmental function.   The court also held that even though the city had brought a claim against Downstream for an unpaid bill, it did not mean that the city had waived its immunity from all suits related to its provision of sanitary sewer services.  The court of appeals upheld Downstream’s claims for injunctive relief based on its constitutional claims, but disallowed the money damages as there is no allowance of money damages for due process violations under the Texas Bill of Rights.

Governmental Immunity-Tort:  Eldridge v. Brazoria Cnty., No. 01-13-00314-CV, 2014 WL 1267055 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014) (mem. op.).  Eldridge sued the county after being severely injured in a wreck on a county bridge that had been torn out to be rebuilt by the county.  Eldridge argued that the county was negligent because it did not have adequate warning signs that the bridge was out, but only “thin barricades” which created a premises defect and special defect under the Tort Claims Act.  The county filed a plea to the jurisdiction, trying to shift the blame to the Texas Department of Transportation, with which it had a contract to fix the bridge.  It also argued that under Texas Civil Practices and Remedies Code Section 101.021 (Texas Tort Claims Act), a governmental entity is only liable for injuries occurring because of a premises or special defect if the injury is caused by the actions of an employee of the governmental entity.  The court of appeals held that a county can be liable for an injury caused by a special or premises defect caused by a condition of real property without participation of a governmental employee based on a Supreme Court of Texas opinion, DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995).  In DeWitt, the court held that when the injury is caused by real property, liability is not determined by the action of a governmental employee, but upon the property itself being unsafe.  Id. The court of appeals held that there were sufficient facts for the case to go forward without any argument that a county employee caused the injury.

Public Information Act: City of San Antonio v. Abbott, No. 03-11-00668-CV,  2014 WL 1415184 (Tex. App.—Austin Apr. 10, 2014).  In this Public Information Act case, the City of San Antonio withheld information contained within its call-for-service and dispatch logs as privileged.  The Office of the Texas Attorney General (AG) opined the records had to be released, and the city appealed. The appellate court agreed with the city and held the records could be withheld.  The city asserted that its call-for-service logs relating to motor vehicle accident reports were excepted from disclosure under Texas Transportation Code Section 550.065 (relating to releasing accident information only under certain circumstances and after required redactions). Section 550.065 provides that information that “relates to a motor vehicle accident reported under . . . [C]hapter [550]” is privileged and for the confidential use by the city.  Chapter 550 reports are required when an accident results in injury to or the death of a person or damage to the property of any one person to the apparent extent of $1,000 or more. The city may release the report if a requestor can provide two of three sets of information which only a party to the accident should know. It is undisputed that the requestor, the Texas Weekly Advocate, did not provide two of the three required pieces of information instead seeking information about all accidents or all calls on a given day. The requested call-for-service and dispatch logs contain two of the pieces of information required.

The AG concluded that the exception to disclosure applies only to the accident report itself and not information that may simply relate to it, such as dispatch logs. The city appealed the opinion to district court, which agreed with the AG’s conclusion. The city appealed. The Austin Court of Appeals held the legislature’s use of the phrase “information that . . . relates to a motor vehicle accident” reported under Chapter 550 has the effect of broadening the scope of Section 550.065 to render more than the actual accident reports confidential. In this case, the city provided evidence at trial that when an accident is required to be reported under Chapter 550, the report is linked within the city’s computer system with all other data gathered, including the initial call for service.  As a result, all of the linked information “relates to” the accident and is confidential. Thus, the trial court erred in ordering its release.  The court of appeals reversed and rendered judgment for the City of San Antonio.*

Employment: Lacey v. City of DeSoto, No. 03-12-00122-CV, 2014 WL 1018074, (Tex. App.—Austin Mar. 14, 2014) (mem. op.).  This is an appeal from a trial court order granting the City of DeSoto and the Texas Commission on Law Enforcement Officer Standards and Education’s (Commission), now called Texas Commission on Law Enforcement, plea and motion to dismiss in a license revocation challenge. Lacey was a former law-enforcement officer who lost his license from the Commission after being convicted of driving while intoxicated. His employment with the city was then terminated. Lacey went through the administrative hearing process to challenge the suspension of his license. Afterwards, he filed his first suit.  The Commission filed a plea to the jurisdiction asserting he did not exhaust his administrative remedies since he did not file a motion for rehearing. The trial court granted the plea.  Lacey then filed this second lawsuit against the city as well as the Commission.  However, the only requested relief was the same relief Lacey sought in the first suit, which is the reversal of his suspension. The trial court granted the city’s motion to dismiss and the Commission’s plea to the jurisdiction.  Lacey then filed this appeal. The court first went through the law regarding the administrative appeal process and noted that a motion for rehearing is one of the administrative remedies that a party must exhaust before seeking judicial review. It is a jurisdictional prerequisite. Lacey argued Section 2001.144(a)(4) of the Government Code means that the administrative order may not be signed later than the 20th day after it was rendered in order to be final. That was incorrect, though. The signature page on the administrative order states January 13, 2011, as does the text.  This date is the date of finality, which starts the clock to file a motion for rehearing. As a result, Lacey’s claims against the Commission are barred by not only res judicata but also jurisdictional prerequisites. Since the only relief sought by Lacy was the reversal of his suspension, which does not involve anything the city has the authority to do, the trial court properly granted the city’s motion to dismiss.*

Takings: San Antonio Water System v. Overby, No. 04-13-00364-CV, 2014 WL 1033921 (Tex. App.—San Antonio Mar. 19, 2014).  This is an interlocutory appeal from the denial of a plea to the jurisdiction in a flooding case.  The Overbys allege their yard and home were flooded by rainwater and sewage over several years due to the deteriorated condition of an alleyway behind their home. They sued several entities including the San Antonio Water System (SAWS). Specific to SAWS, the Overbys claimed SAWS failed to properly maintain the sewer system and brought takings, negligence, declaratory judgment and nuisance claims.  SAWS filed a plea, which the trial court granted in part and denied in part, dismissing the declaratory judgment action and negligence claims. After further discovery, SAWS filed a second plea, which the trial court denied.  SAWS appealed that denial. The appellate court first determined SAWS was a governmental entity subject to takings claims. Examining the evidence in the light most favorable to the Overbys, the court assumed SAWS knew it should have changed the grade in the alleyway. However, the evidence presented failed to show the necessary intent to form a takings claim.

While SAWS may have known the damage was preventable, that knowledge did not equate to an intent to deprive the Overbys of their property. The appellate court concluded that the takings claim should have been dismissed. As to the nuisance claim, the Overbys claim the Texas Tort Claims Act waived SAWS immunity. However, even if accurate, there was no nexus between the use of motor driven equipment and the alleged injury to the property.  The injury of the Overbys did not relate to the use of equipment but to the state of the alleyway behind their home. As a result, the nuisance claim should also have been dismissed. The trial court’s order denying the plea was reversed and judgment rendered for SAWS.*

Historic Preservation: City of San Antonio Bd. of Adjustment v. Reilly, No. 04-13-00221-CV, 2014 WL 1033493 (Tex. App.—San Antonio Mar. 19, 2014). This is an appeal from a trial court order reversing the decision of the City of San Antonio Board of Adjustment (BOA) regarding the demolition of a building.  Reilly owned property that he planned to demolish and replace with a six-unit apartment complex. He filed an application to demolish the structure as required by the City of San Antonio’s Unified Development Code.  However, the historic preservation officer denied the request. Reilly appealed the officer’s decision to the BOA.  After a public hearing on the appeal, the BOA upheld the denial of the permit.  Reilly then filed suit.

The trial court granted Reilly’s summary judgment motion alleging that the BOA abused its discretion in denying the demolition request because Reilly presented evidence that the property had lots its historic, cultural, architectural, or archeological significance.  The BOA then appealed.  Under the city’s ordinances, to obtain a demolition permit in a historic district, an individual must show either unreasonable economic harm or that the property suffered a loss of significance.  The appellate court points out that Reilly had the burden to establish the property had undergone significant and irreversible changes that caused it to lose significance.  While Reilly did present some evidence indicating the property had undergone a loss of architectural significance, he failed to address a loss of historical or cultural significance.  Meanwhile the city showed that the property retained some architectural, historical, and cultural significance.  Based on the trial court evidence presented, the appellate court concluded that the BOA acted within its discretion in upholding the decision to deny Reilly’s demolition request.  Therefore, the court reversed the trial court’s judgment and rendered judgment affirming the BOA’s decision.

Takings: City of Dallas v. Millwee-Jackson Joint Venture, No. 05-13-00278-CV, 2014 WL 1413559 (Tex. App.—Dallas Apr. 4, 2014) (mem. op.).  This is an interlocutory appeal from the denial of a plea to the jurisdiction in an inverse condemnation suit. The appellate court affirmed the denial noting jurisdictional fact questions existed precluding dismissal. Millwee-Jackson Joint Venture (MJJV) intended to build a hotel and sought a permit to build a bridge over a creek to connect to a key artery in 1982. Due to a variety of reasons, the property did not develop. MJJV alleges that in 1998, the City deleted the main artery, Alamo Street, from its master thoroughfare plan. The city closed Alamo Street in 2002, and MJJV filed suit in 2004 for inverse condemnation, injunction and nuisance. The case went up and down from the trial court to the court of appeals until the city amended its plea to the jurisdiction. The trial court denied the plea, and the city appealed.

After analyzing the standards for different types of regulatory takings, the court explained that MJJV alleges Texas Department of Transportation intends to acquire city parkland for widening of an interstate and, under federal and state law, the city must mitigate the loss by acquiring new parkland. MJJV’s property is the nearest property realistically capable of being condemned for that purpose, so the city allegedly was intentionally thwarting its development to lower condemnation costs. Despite no direct evidence that the city intended to condemn the property for parkland, MJJV presented evidence forming the basis of this speculation. While the city produced plans and evidence of future development showing the MJJV property not being acquired for any purpose, the court determined a fact question existed. The court next examined MJJV’s investment-backed expectation entitlement. The city asserted that since MJJV offered to donate the property to the city prior to closing Alamo Street, MJJV had no expectation of development. MJJV countered that the offer to donate was part of an attempted settlement in a sign code dispute, which the city did not accept. It purchased the property in a commercial zone and produced evidence of the attempted development activity towards the property. As a result, factual questions existed precluding dismissal.

Next, the city asserted that no taking can occur for the closing of Alamo Street since it was not connected with the property originally and thus, no denial of access could result. However, the evidence established MJJV’s property could not be developed without the bridge connecting it to Alamo Street and permits were applied for and conditionally granted prior to closure. Sufficient jurisdictional assertions were raised to give jurisdiction to the trial court. The court then analyzed MJJV’s injunctive relief to force the city to reopen Alamo Street. Even though MJJV’s property does not abut Alamo Street as typically required under Texas Civil Practice and Remedies Code Section 65.015 (statutory requirements for closure in relation to abutting property owner’s rights), an owner can acquire rights by easement or prescription so the property does not have to abut the roadway. MJJV presented evidence establishing jurisdiction to determine whether its actions qualify as a prescriptive easement to Alamo Street, which could entitle MJJV to force the city to reopen the roadway. Finally, in relation to the nuisance claim, the court simply said the regulatory taking claim remains unresolved so fact questions exist as to nuisance.  The court of appeals ruled that the plea was properly denied by the trial court.*

Inverse Condemnation:  City of El Paso v. Ramirez, No. 08-12-00309-CV, 2014 WL 996368 (Tex. App.—El Paso Mar. 14, 2014).  In this case, property owners filed suit against the city alleging claims of inverse condemnation, nuisance, and trespass when the city’s landfill’s retention ponds overflowed during heavy rainfall, damaging owner’s buildings and crops.  The trial court denied the city’s plea to the jurisdiction and the city appealed.  (This is the second time this case has been before the appellate court on the city’s plea to the jurisdiction.  See City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex. App.—El Paso 2011, no pet.)).

The city argued that property owners did not plead a valid takings claim and thus those claims are barred by governmental immunity.  The city argues the nuisance and trespass claims are also barred by the city’s governmental immunity.  The appellate court held that the owners’ pleadings alleged facts to show that the discharge of water was the result of an intentional act, and that the property had been taken for a public use, both required for an inverse condemnation claim.  The court also held that fact issues existed as to whether the city knew the construction, operation, and maintenance of the landfill was substantially certain to damage the property by continuing to flood it during heavy rainfall so the trial court did not err when it denied the city’s plea to the jurisdiction.

Tort Claims Act:  City of College Station v. Kahlden, No. 10-12-00262-CV, 2014 WL 1269026 (Tex. App.—Waco Mar. 27, 2014) (mem. op.).  In this case, a police officer stopped to remove boots from a roadway.  A driver stopped behind the police officer and was killed when she was struck from the rear by another vehicle.  The trial court denied the city’s motion for summary judgment alleging sovereign immunity and the city appealed.

The city asserted that Section 101.055 of the Tort Claims Act (Act) was an exception to Section 101.021’s waiver of sovereign immunity.  Section 101.021 of the Act waives immunity for certain injuries or death that arise from the use of a motor driven vehicle. Section 101.055 provides that the Act “does not apply to a claim arising . . . from the action of an employee while responding to an emergency call or reacting to an emergency situation” if certain requirements are met.  The city also asserted that Section 546.001 of the Transportation Code, which allows emergency vehicles to park of stand when an operator is directing or diverting traffic for public safety purposes, authorized Elkins to stop on the roadway to remove the debris.  After discussing the meaning of the term “emergency” in Section 101.055 and the phrase “public safety purpose” in Section 546.001, the appellate court concluded that the city had proved that Section 101.055 applied and that the trial court erred in denying the city’s motion for summary judgment.

Collective Bargaining: City of Brownsville v. Longoria, No. 13-12-00224-CV, 2014 WL 1370115 (Tex. App.—Corpus Christi Apr. 3, 2014) (mem. op.). This is a collective bargaining case where the fire fighters’ association attempted to invoke a provision allowing it to the same wage increases provided to the police department association (PD) after the PD settled a separate lawsuit. Following a bench trial, a judgment was rendered for the Brownsville Fire Fighters’ Association (BFFA) and the city appealed.

In what the court terms the “me too” provision of the contract, if the city “voluntarily negotiates” an across-the-board wage increase for non-exempt employees (under the Fair Labor Standards Act), the bargaining unit shall be granted the same improvement. Both the PD and BFFA have similar “me too” clauses. In 2007, the PD sued the city asserting the “me too” provision entitled them to the same rate increase provided to the fire fighters. The suit went to trial and the city lost. Afterwards, the city negotiated a settlement for less than the judgment. The settlement provided for a certain increase for police officers.

In response, the BFFA sued the city asserting the settlement of the PD lawsuit entitled the fire fighters to a raise. The city argued the settlement was not a “voluntary negotiation” since it would never have entered into one had it not lost at trial. The appellate court disagreed noting both parties to the settlement made concessions so sufficient evidence existed it was voluntary. The city next asserted the settlement was not for an “across-the-board” adjustment. However, the court noted the term means across every group or classification, not that every adjustment must be at a uniform rate or a strict rank-to-rank comparator. Finally, the city argued that the PD settlement was its own “me too” lawsuit attempting to bring the PD in line with BFFA. To say that BFFA now gets a raise due to the settlement to bring PD into line with BFFA is an absurd result. The court dismissed this argument simply noting the plain language of the “me too” clauses ties the increases to fiscal years, not the origin or circumstances surrounding the increase. As a result, the trial court judgment is affirmed.*

Inverse Condemnation: City of Corpus Christi v. Scorpio Dev., L.L.C., No. 13-13-00445-CV, 2014 WL 1007880 (Tex. App.—Corpus Christi Mar. 13, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in an inverse condemnation case which the appellate court affirmed.

The city approved a subdivision plat which contained two lots which were later sold to Scorpio Development (Scorpio). Scorpio alleged that the city took 35 feet of its property without compensation when it widened the adjacent roadway. The city asserted Scorpio dedicated that section of right-of-way and therefore no taking could occur as a matter of law. Scorpio asserted the dedication was not authorized. The trial court denied the city’s plea to the jurisdiction and the city appealed.

While the City cited to deposition testimony that the 35 foot expansion area lies within the 50 foot dedicated right-of-way, Scorpio submitted evidence that it lost 35 feet of property. While the testimony does not appear to be a direct contradiction, the Corpus Christi Court of Appeals held it believes a fact question exists as to whether or not the expansion project exceeded the 50 foot dedication. The court did note that this fact issue will ultimately determine whether Scorpio will succeed on the merits, but that the court could not be the one to make that call with the current record. As a result, the plea was properly denied and the trial court order was affirmed.*

Whistleblower Act: City of South Houston v. Rodriguez, No. 14-12-01119-CV, 2014 WL 1089069 (Tex. App.—Houston [14th] Mar. 20, 2014). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Whistleblower Act case which the appellate court reversed.

Rodriguez worked as a municipal clerk for the city and supervised two employees. She discovered what she believed to be “ticket fixing” by one of the clerks. She reported her suspicion to a council member because the mayor was allegedly involved in “fixing” several of the tickets.  She also reported it to the city prosecutor and judge, who agreed that discrepancies existed between the paper tickets and files entered electronically, but believed it was merely a matter of processing and did not take any action. The opinion is unclear at what point she was discharged, but a discharge occurred sometime later.

The appellate court analyzed the reports for the “good faith” element under the Whistleblower Act. Rodriguez’ belief that the mayor was involved was not reasonable given the limited hearsay she based it upon. Further Rodriguez offered no evidence regarding why “a reasonable chief clerk with her training and experience would have believed ticket fixing was occurring based on  fourteen tickets having been improperly processed in an office with the problems  faced by the South Houston municipal court office.”  The court almost offhandedly noted Rodriguez also could not point specifically to what statutory law makes illegal the specific activity she alleges. As a result, the city’s plea should have been granted.*

Tort Claims Act: City of Deer Park v. Hawkins, No. 14-13-00695-CV, 2014 WL 953427 (Tex. App.—Houston [14th Dist.] Mar. 11, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a premise defect case, which the appellate court reversed, dismissing Hawkins’ claims.

Hawkins drove to the city’s trash transfer station to dispose of trash and debris.  While in an unloading slot, Hawkins lost his balance while standing on his trailer and fell into the open trash bin.  Hawkins sued under the Texas Tort Claims Act (TTCA) alleging a premise defect.  The city filed a plea to the jurisdiction noting it was unaware the bin posed a dangerous condition and Hawkins cannot sue for negligent implementation of a rule to keep citizens away from the debris hole. The trial court denied the plea and the city appealed.

Citing to Hawkins’ testimony that as he threw debris into the bin he could see it went at least 15 feet down and that if he fell, he would become injured (open and obvious danger) the appellate court determined Hawkins knew of the dangerous condition the unloading location posed. As a result, he could not establish a waiver under the TTCA. The court then held Hawkins did not properly allege the negligent implementation of a policy in his pleadings and did not amend. However, even if he had, allegedly negligent implementation of policy does not by itself waive immunity. Waiver of immunity must be demonstrated under some provision of the TTCA before a claim of negligent implementation of policy can be pursued.  Since Hawkins knew of the dangerous condition, no theory of liability can attach. The denial of the plea was reversed and Hawkins’ claims dismissed.*

*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to